Authored by Michael W. Kopp

Ordonez v. RadioShack, Part II is the end-of-summer sequel you do not want to miss. It features our protagonist, the “uniform rest break policy,” a sinister cast of declarations of similar treatment, a harrowing finding of unlawfulness, a dramatic second run by plaintiff at class certification, and the court’s emphatic second opinion denying plaintiff’s certification gambit. Sequels can be more satisfying than the original. Ordonez, Part II delivers the welcome message that identifying a uniform employer policy, even one that is likely unlawful, is not the end of the story. Where there are difficulties in proof as to the application and impact of a uniform policy on the class, Ordonez serves notice that certification should be denied.

Ordonez claimed that RadioShack’s rest break policy shorted sales associates their rest breaks when they worked between six to eight hours. In taking a second run at class certification, plaintiff offered more evidence of the uniformity of the rest break policy at issue, which provided “one paid 15-minute break for every four hours.” Nineteen employee declarations uniformly (no surprise) attested to missing second breaks for work performed between 6-8 hours.  In response, the court found that plaintiff had established that RadioShack maintained “a uniform stated policy . . . that is likely inconsistent with California law.” But plaintiff could not take that finding to the bank, because issues of individualized proof and manageability made class certification the wrong choice. The takeaway from Ordonez is so important, that we dare not dilute it with a paraphrase: “[I]n spite of the evidence that RadioShack had a uniform rest break policy that may have violated California law, substantial manageability concerns remain regarding proof of whether and how this policy was actually implemented.”

What were the manageability concerns? Chief among them was plaintiff’s inability to identify any way to prove whether any class member took or failed to take a break. There were no reliable electronic records logging actual breaks taken, and RadioShack was not required to keep such records. Not even the plaintiff’s supplemental submission of RadioShack’s electronic scheduling records could do the trick because, “at most, they reflect when RadioShack scheduled rest breaks for its employees”, and not when employees actually took rest breaks. That would require testimony from each RadioShack employee. Another key takeaway was the court’s rejection of the “this is a damages issue” argument. “Here the issue is whether classwide methods of proof exist to show that California law was actually violated.”

Ordonez also discusses recent California Appellate Court decisions certifying wage and hour classes where the underlying claims challenged uniform employer policies. Benton v. Telecom Network Specialists, Inc.; Faulkinbury v. Boyd & Assocs., Inc.; Bradley v. Networkers Int’l, LLC. But these decisions were all cases where the employer had never implemented a rest break policy. In other words, the uniform rest break policy applicable to the class was the absence of any such policy. These courts were not faced with claims that required a more individualized inquiry as to each class member’s rest break usage.

Ordonez rejects the argument that class certification is required whenever the claim challenges a uniform policy. Rather, the court noted “[i]t is an abuse of discretion for the district court to rely on uniform policies to the near exclusion of other relevant factors touching on predominance.” The court also helpfully pointed to a recent rising tide of decisions denying class certification in actions alleging rest break violations based on a stated uniform policy, with Cummings v. Starbucks Corp., and In re Taco Bell Wage and Hour Actions serving as examples.

Ordonez underscores that manageability and predominance issues do not simply vanish whenever the plaintiff takes a run at an employer’s uniform policy. These concerns must still be satisfied, particularly as to whether a method exists for establishing common proof on a classwide basis that the policy was implemented unlawfully.